The complexities of gay and lesbian parenting have been brought home in the recent Federal Magistrates Court case of Halifax and Fabian. The case involved:

a lesbian couple, Ms Halifax and Ms Fabian, who had been together for 7 years, but who had split up a year before the court decision

their two kids, X and Y. Ms Halifax is the mother of Y, a girl aged 7, and Ms Fabian is the mother of X, a girl aged 3.

The father of Y was Mr Dalton. X's father was an anonymous sperm donor.

Mr Dalton had partnered a Mr Ballard.

There were three houses for the kids- Ms Halifax's, Ms Fabian's and the men's house.

Ms Fabian decided that she wanted to move to NSW from south-east Queensland with X.

The preliminary question for the court was whether the men, who had no genetic connection with X had a right to go to court, on the basis that they were people concerned with the "care, welfare and development" of X. Federal Magistrate Purdon-Sully held that the preliminary threshold had been met.

Her Honour found:

Whilst it is clear that historically the relationship between Ms Fabian and MrDalton and Mr Ballard was not as close as that enjoyed by Ms Halifax... andwhilst it is clear the mother was less committed to the particular type ofnon-traditional family arrangement enthusiastically embraced by her formerpartner, ..... and whilst there may be some merit in the submission of counselfor Ms Fabian, Ms Brasch, that it was a life-style choice ultimately imposedupon her as a consequence of her relationship with Ms Halifax and her commitmentto their parenting of [Y], the evidence is that Ms Halifax and Ms Fabian made adecision to parent their children together, without differentiation and MsFabian knew that Mr Dalton (and his partner) would be involved in the parentingparadigm.

The evidence showed:

The men were involved in the parenting of both children. They had established a home to accommodate the development of the relationship and had made employment and residential adjustments to that end.

Decisions were made prior to conception of both children including with respect to religion, education, circumcision, discipline, all four adults agreeing to remain living in south-east Queensland.

The men accepted Ms Fabian's invitation to attend her twelve week pregnancy scan.

The men visited the hospital the day of X’s birth and daily thereafter and cared for Y until X was brought home.

The men were introduced as “daddy” to the friends and family of the applicant and mother. X referred to her mother and Ms Halifax as “Mummy” and “Mama” and to the Mr Dalton as “Daddy” and “[Mr Ballard] [first name omitted]” (and possibly “Daddy [first name omitted]” on the evidence of Mr S.)

The children developed a close attachment to each other and to the men. The family report writer observed that the children were strongly attached and affectionate with both mothers and affectionate and secure with both men. Ms Fabian acknowledged that the men loved [X], that [X] was comfortable with them and that they had a bond with her and should spend time with her, her complaint being that they should not be permitted to assume a parental-decision making role.

The men spent regular time with the children including on weekends and week days and they were also asked to babysit from time to time.

Whilst Ms Fabian's refusal to agree to overnight time caused some angst and created problems, on their evidence, with [Y]’s arrangements, on one occasion Ms Fabian did agree to this to enable [X] to spend time with her grandmother, Mr Ballard’s mother who was visiting.

The men exchanged gifts with the children on birthdays, special occasion, on Father’s Day and at Christmas, including in 2008 after Ms Halifax and Ms Fabian had separated.

The men and women socialised, attended activities, celebrated special occasions and had holidays together.

The men attended with the children and Ms Fabian at the annual gay pride parade marching in the family section of the parade.

The men established a separate bedroom for [Y] and [X] with a bed that converted to two singles beds to accommodate any overnight stays and did so with the knowledge and without objection from the applicant or the mother.

[X] had a photo of the two men in her bedroom.

The men were listed by Ms Halifax as emergency contacts in 2006 and 2007 at [X]’s day-care centre.

Ms Fabian consulted Mr Dalton about some medical issues to do with [X] given his medical background.

The ABC is reporting that President Obama has pledged to get rid of don't ask, don't tell- the policy adopted during the Clinton years when Bill Clinton was unable to persuade Congress to remove discrimination against gays and lesbians in the US armed forces.

President Obama is quoted as saying that 12,000 service personnel have been drummed out of the military based on their sexuality.

Same-sex couples in Uruguay will be able to adopt children following the approval of a controversial bill by the country's senate, according to the BBC.The move means Uruguay becomes the first Latin American country to allow gay couples the chance to adopt.Uruguay already allows civil unions.

In a recent decision of the English High Court, a claimant sought that the Secretary of State in charge of prisons be shown to be wrong in preventing her from moving from a male to a female prison. The claimant's complaint was upheld by the court.

The claimant, a 27 year old pre-operation male to female transsexual, was serving life imprisonment for manslaughter and attempted rape. She had obtained a certificate under the Gender Recognition Act, and was for all purposes recognised as female. She had had hormone therapy and no longer shaved. She dressed and was generally recognised in prison as a woman. She wore makeup. The requirements of the prison were that she could dress as a woman in her cell, but had to dress as a man once out of her cell!

Under the Gender Recognition Act, the claimant was recognised for all purposes in law, except apparently in prison, as a woman.

Not surprisingly, for her protection, she was held in segregated. The bureaucrat refusing to transfer her cited part of the reason for that was that in a women's prison she would be segregated, ignoring the fact that she was already segregated.

The claimant asserted that the refusal to allow her to move to a women's prison prevented her from being operated upon, and also prevented her from undertaking the necessary courses that were required to enable her earlier release from prison.

The claimant stated:

"The prison service seems to have confused attitudes about all this. Theywill not consider me as a female until I have my penis removed ...notwithstanding my gender recognition certificate. Yet they resist moving me tothe female estate which would enable the surgery to be arranged.I feel an increasing sense of urgency to get this final stage completed. I have beentrying since I was 10 to get this sorted out and I am now 27. After 17 years andwhen I am so nearly there, it is frustrating not to be able to progress to thefinal stage. I sometimes worry that it might never happen. I feel in limbo, Iread in the papers about young people in the community who are getting the helpthey need and that I asked for. Recently there has been a young person from thenorth east who has had surgery at the age of 19. I am very happy for her but Iwonder why that could not have been me. It is not as though I am someone who hasasked for this later in life having tried to live a different life - gettingmarried and having kids and so on. I have tried to get help from a very earlyage. I do get frustrated but I try to deal with this on my own. I do cry and letmy emotions out but I do this in the privacy of my own cell. It is not somethingI can discuss with anyone in the prison.

The bureaucrat stated why he had refused the transfer request to the women's prison, which apparently boiled down to money:

It is important to have in mind a number of factors when consideringwhether it would be appropriate to allow the Claimant to be placed in thegeneral female estate (i.e. not in segregation): the specifics of her offendinghistory (which of course include an attempted rape of a female, as well asmanslaughter); the difficulty of sourcing any suitable interventions for her andthe time it will take to put something in place and then to monitor her responsein terms of reducing her level of risk; the lack of guarantees that her surgerywill definitely proceed, as this is a clinical judgment which is totally outsidethe control of the Prison Service; concerns over how the female population wouldreact to her generally, and also specifically if they became aware of her indexoffence. With all of the above in mind, there can therefore be no guarantee thatthe Claimant, either pre- or post-operatively, would ever be suitable forintegration into the general female prison population.

There are serious detrimental effects of segregation on a prisoner overa long period of time and I note the Claimant's history of reacting badly tofrustration. This increases the likelihood that she could become progressivelyharder to integrate into the general population, should she be moved to asegregation unit in the female estate.

I would also say that following an unsuccessful move to the femaleestate, it would be extremely difficult to move the Claimant back to the maleestate at that stage.

Notwithstanding the issues about risk and the immediate difficultiesof any transfer, there are also difficulties with keeping the Claimant onindefinite or long-term segregation. While she has self-segregated in the past,it is clinically undesirable for her to remain apart from her peers. Associatingwith them is a necessary part of the therapeutic process, but is clearly notpossible while segregated.

There is the further difficulty with the very considerable costinvolved. No definitive long term costing has not been done yet. However, thesegregated regime of another male to female transsexual prisoner who previouslytransferred to segregated accommodation within the female estate is estimated tocost approximately £85,000 per year (in addition to the standard costs ofimprisoning any individual), This includes the costs of keeping that prisonerring-fenced with two dedicated officers, and a third trained for relief work, aswell as separate psychology and mental health costs, and costs for separateexercise and education. This presents significant resource implications.

There are other concerns including concerns that other male to femalegender dysphorics may wish to follow any precedent set by the Claimant and enterthe female estate which would further constrain the limited number of availablesegregation places in the female estate.

The court held that the decision was in breach of the European Convention on Human Rights, which meant that the claimant would be able to be transferred to a women's prison.

South Carolina man Jerome Mitchell was 17 and about to go to college. He needed to get health insurance as his mother's health insurance policy no longer covered him. He was asked on the form whether he had ever been diagnosed or treated for an autoimmune disease, and correctly answered "no". He was then covered for health insurance.

About a year later, when Mr Mitchell went to donate blood, he discovered that he was HIV positive. He made a claim on his health insurance policy. The insurer instead cancelled the policy because, it said, he failed to properly disclose, at the time of entering into the policy, that he did in fact have HIV.

The insurance company did this because there was a note in Mr Mitchell's medical chart that stated that he had HIV. This note was written after the news came from the Red Cross about his HIV status, when Mr Mitchell then sought confirmation from his doctor, but was incorrectly dated the year before- it was therefore dated before Mr Mitchell applied for health insurance. It was clear, overwhelmingly, that the entry in the medical record was wrongly dated, but the insurance company relied on the date to cancel the policy.

At trial, the evidence against the insurance company was damning:

At trial, Mitchell’s insurance expert testified that it was [the company’s] practice to shut down an investigation once a single piece of evidence was discovered that would support rescission. Further, Mitchell introduced testimony from [the company’s] manager of underwriting and correspondence ...who testified that she was “not able to answer” whether she or any of her employees “had a responsibility to find out the truth” about a policyholder’s medical conditions. On cross-examination, [the company's] insurance expert conceded that an insurance company has a duty to investigate and find information that may lead to payment of a claim.

I posted just over a month ago that there was to be an LGBTI community legal service in Brisbane. There are now a number of solicitors who are keen to be volunteers.

Anyone else? If you are an LGBTI lawyer, or LGBTI friendly, give me a call, and I'll fill you in with what's involved. The service is looking at a whole range of lawyers, not just family lawyers like me. Either email me or phone me: 07 3221 9544.

This service is completely unfunded, although the Queensland Association of Healthy Communities is helping out, not only hosting the service when it gets up and running, and in kind help, but now some money for someone to help get it started.

 Commission the design and layout of the website, using a content management system

 Promote the website to LGBT people, legal practitioners and others with an interest.Info…QAHC adheres to EEO principles and all applications will be assessed on merit.

QAHC values the contribution of people with HIV/AIDS in the workplace and encourages people with HIV/AIDS to apply. Reasonable travel expenses to interview will be reimbursed and relocation allowance paid for people moving town/interstate/. For a copy of the application package phone (07) 3017 1777, email recruit@qahc.org.au or visit www.qahc.org.au/jobs

If you have any questions contact Paul Martin, General Manager on (07) 3017 1791 or 0407 376 540. Applications close 4pm Monday 19th October 2009.

2016 winner of a Queensland Law Society Equity and Diversity Award: The Australian Gay and Lesbian Law Blog: " (a)strong and pioneering commitment to the rights of and interests of LGBTI people in Australia" Queensland Law Society May, 2016

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.